Chang-Hooker v Rooke [2013] NZHC 1920 (31 July 2013)

Last Updated: 7 August 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-006074 [2013] NZHC 1920

BETWEEN SANDY CHANG-HOOKER Appellant

AND DAVID JOHN ROOKE Respondent

Hearing: (on the papers) Appearances: Appellant in Person

Respondent in Person

Judgment: 31 July 2013

_{[COSTS] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 31 July 2013 at 4.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

CHANG-HOOKER v ROOKE [2013] NZHC 1920 [31 July 2013]

[1] I refer to my costs judgment of 22 July 2013, given in relation to Ms Chang- Hooker’s application that I should recall my judgment issued on 6 March 2013, when I struck out the notice of appeal for failure to comply with an unless order.

[2] The respondent, Mr Rooke, has sent an email to the Registrar. In that email, he records that in my judgment of 6 March 2013, I reserved the question of costs and directed the parties to file memoranda in that regard. He points out that he filed a memorandum on 11 March 2013, and he asserts that Ms Chang-Hooker filed a memorandum in reply on 18 March 2013. He notes that costs in relation to the strike out have not been finalised. He also notes that costs have not been finalised in relation to a judgment given by Ellis J, dismissing an application for a stay made by Ms Chang-Hooker, which judgment is dated 26 October 2012.

[3] I have checked the Court file. Mr Rooke is correct that costs in relation to my judgment of 6 March 2013 have not been fixed. Moreover, he is correct when he notes that costs have not been fixed by Ellis J, consequent upon her judgment of

26 October 2012.

[4] I note that Ellis J did not expressly deal with costs in her decision. I do not consider that that precludes me from dealing with them at this stage.

[5] Mr Rooke’s memorandum dated 11 March 2013 is on the Court file. There was no separate memorandum from Ms Chang-Hooker filed on 18 March 2013. There is, however, an affidavit filed by Ms Chang-Hooker dated 20 March 2013, in which she refers to her costs memorandum dated 18 March 2013. A copy of that memorandum is annexed to the affidavit. I have considered that annexure.

[6] I deal with each costs application in turn.

Costs in relation to strike out order of 6 March 2013

[7] I struck out the notice of appeal on 6 March 2013 because Ms Chang-Hooker had failed to comply with an unless order made by me. I gave directions for the filing of memoranda in relation to costs.

[8] Pursuant to the High Court Rules, Mr Rooke, as the successful party in relation to the appeal proceedings, is entitled to his costs and disbursements.[1] Those costs fall to be fixed in accordance with the rules. They are assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding. For this purpose, proceedings are categorised as falling within one of three classes, and within one of three bands.

[9] Here, it was directed at the outset that costs in relation to the appeal should be dealt with on a 2B basis. This category is appropriate for proceedings of average complexity requiring a normal amount of time.

[10] Mr Rooke in his memorandum in relation to costs asserts that he was entitled to indemnity costs, pursuant to a signed engagement agreement, but records his election to seek costs on a 2B basis, as well as increased costs.

[11] Mr Rooke has annexed to his memorandum two schedules, one relating to costs, calculated on a 2B basis, in relation to the strike out, and the other relating to the interlocutory application for a stay of execution and judgment, which was heard by Ellis J.

[12] Ms Chang-Hooker takes issue with various items in those schedules. I am of the view that some of her complaints are justified.

[13] I note as follows:

(a) Mr Rooke claims costs for “commencement of response to the appeal, or cross appeal”. I do not consider that he is entitled to claim costs in that regard. There was no response to the notice of appeal filed. Nor was there a cross appeal.

(b) Mr Rooke claims costs for filing memoranda for seven case management conferences, at .4 of a day each in respect of each

_{memorandum. I have checked the Court file. Insofar as I can see,}

only three memoranda for case management conferences were filed. In accordance with the rules, Mr Rooke is entitled to .4 of a day in respect of each of those three memoranda, giving a total of 1.2 days in respect of this aspect of the matter.

(c) Mr Rooke claims costs for preparation of the case on appeal.

Preparation of the case on appeal was Ms Chang-Hooker’s responsibility. There is nothing to indicate that Mr Rooke had any part in this exercise.

(d) Mr Rooke claims costs for the preparation of written submissions for the appeal. The appeal was struck out some two weeks prior to the hearing. I decline to allow Mr Rooke costs for the appeal. There is nothing to suggest that any preparation of written submissions was undertaken.

[14] Accordingly, by my calculation, the appropriate allowance, made in accordance with the rules and calculated on a 2B basis in respect of the strike out, is

4.2 days at $1,990 per day — making a total of $8,358.

[15] Mr Rooke seeks increased costs. He refers to a number of comments made by Judges over the course of this proceeding, where Ms Chang-Hooker’s pursuit of the appeal was seriously questioned. He seeks an increase of 25 percent from the costs otherwise calculated on a 2B basis.

[16] In my view, an award of increased costs is appropriate. The notice of appeal was deficient from the outset. In the course of the proceedings, Ms Chang-Hooker made various serious allegations against Mr Rooke, in effect that he obtained decisions of this Court through fraud. The Court observed, and on more than one occasion, that there was little or no prospect of the appeal succeeding. On occasion, when the matter was called before the Court, Ms Chang-Hooker did not initially appear. Ms Chang-Hooker repeatedly breached Court orders, and was warned, on more than one occasion, that she should carefully consider whether her decision to persist in pursuing the appeal was meritorious and appropriate.

[17] In my judgment, r 14.6(3)(b) is engaged. I award increased costs of

25 percent over and above costs calculated on a 2B basis. It follows that the total award of costs is $10,447.50.

[18] Mr Rooke also seeks disbursements for sealing the costs order, and for the costs incurred for a process server and courier fee. There can be no difficulty with these disbursements. He is, however, not on strong ground when he seeks disbursements for travel to the Court, and parking costs. I refer to [14] of my judgment dated 14 July 2013 in that regard. I decline to award disbursements in this regard.

[19] It follows that I make a costs order in respect of the strike out against Ms Chang-Hooker and in favour of Mr Rooke of $10,447.50, together with disbursements of $158.16.

Costs in relation to application for stay

[20] In his memorandum, Mr Rooke claims a day for filing a notice of opposition to the interlocutory application. The relevant schedule allows .6 of a day. In all other respects, the schedule annexed to Mr Rooke’s memorandum has been compiled in accordance with the relevant rules and schedules. By my calculation, the total costs payable in relation to Ellis J’s decision dismissing the strike out application comes to 2.8 days at $1,990 per day — a total of $5,572, together with disbursements of $48.30, for sealing the judgment.

[21] Again, Mr Rooke seeks increased costs. He refers to observations made by Ellis J that the decisions which Ms Chang-Hooker was seeking to stay were not live before the Court, and that there was nothing in the Court that could be stayed. Again, in my judgment, r 14.6(3)(b) is engaged. I order increased costs of

25 percent over and above costs calculated on a 2B basis, giving a total of $6,965. In addition, Mr Rooke is entitled to disbursements for sealing the judgment —

$48.30.

[22] It follows that I make a costs order in respect of the stay application against

Ms Chang-Hooker and in favour of Mr Rooke of $6,965, together with disbursements of $43.30.

Wylie J

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[1] High Court Rules, r 14.2(a).